Catholic University Law Review Volume 59 Issue 2 Winter 2010 Article 2 2010 Can the President Read Your Mail? A Legal Analysis Anuj C. Desai Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Anuj C. Desai, Can the President Read Your Mail? A Legal Analysis, 59 Cath. U. L. Rev. 315 (2010). Available at: https://scholarship.law.edu/lawreview/vol59/iss2/2 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. ARTICLES CAN THE PRESIDENT READ YOUR MAIL? A LEGAL ANALYSIS Anuj C. Desai+ I. B A CKG RO UN D ............................................................................................. 3 19 II. THE SEALED-LETTER PROVISION .............................................................. 320 A. IntroductoryAnalysis of Statutory Language .................................... 321 B. The Sealed-Letter Provision'sProvenance and Legislative H istory .............................................................................................. 3 2 3 1. Prohibitionon Mailing Obscene Matter (1865) .......................... 324 2. Prohibitionon Mailing Lottery-RelatedMatter (1868 & 18 72) .........................................................................................32 6 3. Prohibitionon Mailing Matter Designedto Further Counterfeit-Money Schemes (1889) ......................................... 328 4. Addition of Letters to Prohibitionon Mailing Obscene Matter (1888) ........................................................................... 329 5. Espionage Act (1917)................................................................... 332 6. Codification ................................................................................. 338 7. The 1970 Postal ReorganizationAct ........................................... 343 C. Principles Underlying Communications Privacy............................... 344 D. A Linguistic and HistoricalAnalysis of the Concept of a L etter................................................................................................. 34 6 1. The Dictionary Meaning of the Term "Letter ........................... 346 2. The Term "Letter" Excludes Packages and Parcels................... 347 3. "Letter" Only Includes "Communications" or "Correspondence .................................................................. 349 4. Evidence Suggesting a BroaderMeaning of the Term "L etter ........................................... ........................................ 3 53 E. Other Related Statutory Prohibitions................................................. 357 III. THE FOURTH AMENDMENT ...................................................................... 359 + University of Wisconsin Law School; Hopkins-Nanjing Center, Nanjing, China (2009-10). The author wishes to thank Jennifer Hartung for her research assistance and the law librarians at the University of Wisconsin Law Library, especially Bill Ebbott, Mike Morgalla, Cheryl O'Connor, and Jenny Zook, for helping find a variety of obscure resources. Additionally, the author thanks Mary Quandt and Elise Volkmann for their word processing help; Ann Althouse, Fabio Arcila, Tricia Bellia, Andy Coan, Thomas Healy, Orin Kerr, Michael Ravnitzky, Paul Schwartz, David Stover, Ian Volner, and Jason Yackee for their comments; and Nina Mendelson for alerting him to the initial news story. Finally, the author received financial support for this Article from a Doyle Summer Fellowship and a Charles F. Luce Summer Research Fellowship from the University of Wisconsin Law School. Catholic University Law Review [Vol. 59:315 IV. THE PRESIDENT'S SIGNING STATEMENT .................................................. 365 V . C ON CLU SION .............................................................................................370 The photo on the Internet showed George W. Bush peering over his reading glasses and grinning slyly at the camera. The caption screamed, "I've got mail! And it's yours!"' and the accompanying New York Daily News story involved the Postal Accountability and Enhancement Act (PAEA)-the first major change in postal law since 1970.2 The story focused on a provision of the Act that addresses the legality of opening first-class mail and concluded that President Bush's signing statement to the law had "quietly claimed3 sweeping new powers to open Americans' mail without a judge's warrant." As one might imagine, the matter did not end there. The story ricocheted around the Internet, provoking the ritual Bush-hating 4 and Bush-defending outrage.5 The story even made its way to the late-night comedy shows, with Late Night host Conan O'Brien joking, "President Bush is claiming that a new postal law gives him the authority to read anyone's letters without a warrant.... [Ijf you're upset about the law, you can let Bush know by writing to your sister." The New York Times and Washington Post also picked up the story.7 Democratic Senator Russell Feingold of Wisconsin sent an open letter 1. Posting of John Hinderaker to Power Line Blog, http://www.powerlineblog.com/ archives/2007/01/016123.php? (Jan. 4, 2007, 12:28 EST) [hereinafter Hinderaker]. 2. James Gordon Meek, W Pushes Envelope on US. Spying, N.Y. DAILY NEWS, Jan. 4, 2007, at 5; see also Peter Hettich, Governance by Mutual Benchmarking in PostalMarkets: How State-Owned Enterprises May Induce Private Competitors to Observe Policy Goals, 32 U. DAYTON L. REv. 199, 199-200 (2007). 3. Meek, supra note 2, at 5. 4. See, e.g., Posting of Jeralyn E. Merritt to Talk Left, http://www.talkleft.com/story/2007/ 1/4/121210/6287 (Jan. 4, 2007, 11:12 EST) (asserting that the signing statement reflected President Bush's belief that the executive branch "can trump the will of Congress and the judiciary"). 5. See, e.g., Hinderaker, supra note 1 (claiming that the New York Daily News article has the story "backward"). 6. Funnies: Complaint for Bush? Write Your Sister, http://abcnews.go.com/ThisWeek/ Funnies/story?id=2776169 (last visited Feb. 4, 2010); see also Posting by Jonathan Ide to Past Peak, http://www.pastpeak.comarchives/2007/01/todays-bushjok 861.htm (Jan. 9, 2007, 9:04 EST) ("We have a new person in the mail room opening mail, President Bush. The president now says the government has the right to open anyone's mail at any time without a warrant. How crazy is that? President Bush finally decided he wants to read something and it's our mail. Hey, how about those memos on your desk? - [Tonight Show host] Jay Leno"); Don Davis, Bush Defends Right to Open Mail: Claims Letter on 9/11 Plot Found Last Week, THE SATIRICAL POLITICAL REPORT, Jan. 5, 2007, http://satiricalpolitical.com/2007/01/05/bush-defends-right-to- open-mail-claims-letter-on-91 l-plot-found-just-this-week/. 7. See Dan Eggen, Bush Warned About Mail-Opening Authority, WASH. POST, Jan. 5, 2007, at A3; Eric Lichtblau, White House Denies Switch in Mail Policy, N.Y. TIMES, Jan. 5, 2007, at A13. 2010] Can the PresidentRead Your Mail? to the president requesting clarification. Republican Senator Susan Collins of Maine, one of the principal drafters of the postal reform bill, introduced a Senate Resolution "reaffirming the constitutional and statutory protections accorded sealed domestic mail," 9 and the American Civil Liberties Union and the Center for National Security Studies made a Freedom of Information Act request to further investigate the president's signing statement. 10 The United States Postal Service (Postal Service) subsequently issued a terse statement denying that the signing statement changed policy in any way.II The New York Daily News story cited legal experts who concluded that the president's "claim [was] contrary to existing law and contradicted the bill he had just signed."'12 But was the president's claim in fact contrary to existing law and, if so, in what ways? In this Article, I will analyze the regulatory, statutory, and constitutional issues related to the president's signing statement and the statutory provision the statement purported to interpret. In particular, I will address the legal question of whether the government may open first-class mail without a warrant and, if so, under what circumstances. In the process, I will draw three fundamental distinctions that have been ignored by commentators thus far: (1) the distinction between a letter-which, roughly speaking, consists of a message, communication, or correspondence-and other mail matter; (2) the distinction between opening mail and reading it; and (3) the distinction between detaining a piece of mail-in particular, for the purpose of obtaining a warrant-and opening it. 13 Under the best reading of the statute, the relevant provision in the PAEA only applies to letters sent via first-class mail, and it bars the opening of letters without a warrant subject to only one relevant exception: the "physical14 searches" provisions in the Foreign Intelligence Surveillance Act (FISA). There is no exigent-circumstances exception for first-class letters, although the 8. Senator Russell D. Feingold, An Open Letter to PresidentBush: So Now You Want to Snoop Through Our Mail, COUNTERPUNCH, Jan. 9, 2007, available at http://counterpunch.org/ feingoldO 1092007.html. 9. S. Res. 22, 110th Cong. (2007). 10. See Letter from Ben Wizner, Staff Attorney, Am. Civil Liberties Union, & Brittany Benowitz, Staff Attorney, Ctr. for Nat'l